- (1.) BY the present writ petition under Article 227 of Constitution of India, the petitioner/original defendant in RCS No.52/2006 on the file of Civil Judge, S.D. Latur, has challenged the order passed below Exh.55 dated 30/09/2008.
(2.) CONSIDERING the small issue involved in the present writ petition, Rule. Rule made returnable forthwith. By consent of the parties, writ petition is taken up for final hearing at the stage of admission itself. The factual matrix which gave rise to file the present writ petition can be summarized that the respondent herein has filed suit for specific performance of contract and of perpetual injunction against the defendant petitioner herein in the Court of Civil Judge, S.D. at Latur. In para no.7 of the said plaint, it is contended by the respondent in the suit before the Trial Court that as the petitioner/defendant in the suit suffered financial crisis, they requested for further amount in lieu of the consideration as agreed under the agreement of sale and in view of this request, a cheque of Rs.30,000/- bearing cheque no.364368 drawn on Marathwada Gramin Bank, Branch Renapur, dated 14/02/2005, cheque in the sum of Rs.1,07,000/- on same bank bearing no.088731 dated 16/04/2005, and cheque in the sum of Rs.93,000/- bearing No.88732 dated 30/05/2005 drawn on the same bank were paid to the defendant/petitioner herein. The corresponding part of the written statement find place in para no.7 wherein there is plain and general denial of the facts stated in para no.7 of the plaint about the payment of these 3 cheques. This written statement was filed on 07/07/2006.
(3.) DURING pendency of the suit, it appears that an application was moved at Exh.55 under Order 6 Rule 17 of CPC by the petitioner who is original defendant in the Trial Court on 11/09/2008 by which an amendment was sought by introducing proposed para no.7(A) after original para no.7 in the written statement. By way of proposed amendment, now the defendant want to amend the written statement that he has received the payment of 2 cheques in the sum of Rs. 1,07,000/- and Rs.93,000/- as alleged by the respondent plaintiff, but according to the petitioner defendant, the plaintiff has obtained hand-loan in the sum of Rs.2,00,000/- from the defendant and these cheques were paid in lieu of repayment of that handloan taken by the respondent from the petitioner. This amendment was opposed by the respondent by filing their say at Exh.57 before the Trial Court wherein it is contended that by introducing this amendment, the petitioner defendant in the original suit is introducing a new case. In the premise, the amendment to be rejected. It appears after hearing both the sides the Learned Lower Court passed the order below Exh. 55 on 30/09/2008 and pleased to reject that application for amendment which is the impugned order challenged by way of this writ petition before this Court. Heard advocate for petitioner followed by the arguments of respondent. During the course of arguments, my attention is drawn towards Order 6 Rule 17 of CPC which speaks for amendment to the pleadings by the parties to the proceeding. Initially attention was drawn to the ruling reported in 2001 (3) All MR 356 in the matter of M/s.Mudra Salt and Chemicals Industries Versus The Collector, Dist. Thane and others in Civil Revision Application No.1081/98, wherein the scope of amendment under Order 6 Rule 17 of CPC is discussed in para no.9, 10, 12 and 13. On careful perusal of the observations of the Single Bench of this Court in this ruling cited, is in respect of amendment in the plaint and not in respect of amendment in the written statement. Here, we are dealing with the case of the amendment in the written statement. With due respect, the observations of the Learned Single Bench in the above cited judgment are not applicable in the present case. Thereafter my attention is drawn towards ruling reported of the Single Bench of this Court in 2006 (6) All MR 771 in the matter of Bharat Petroleum Corpn.Ltd. versus Precious Finance Investment Pvt.Ltd., in writ petition no.2897 of 2006 wherein it is observed in para 14 and para 33 wherein the scope of amendment in the pleadings is discussed at length. What care to be taken while amendment in the plaint as well as in the written statement, in all 21 guidelines are given in para No.33. All these guidelines need not to be reproduced, but in substance it is observed that the strict parallence which required to consider the necessity to amend the plaint that will not be applicable while seeking amendment to the written statement. Bearing in mind the strictness which required to be followed while allowing or rejecting the application for amendment of the plaint under Order 6 Rule 17 which yardstick will not applicable while rejecting or allowing the amendment to the written statement.;